Excerpt: - .....virji kuverji and bhulchand padamshi in respect of a charge under section 477a of the indian penal code. 2. the case of the complainant appellant, c.v. krishnan was briefly as follows: the appellant became a partner of a firm, virji kuverji and co. and a partnership deed was drawn up on 1-1-1954 by the three partners, namely, the appellant and the two respondents. it was also registered with the sub-registrar of assurances, calcutta. according to the terms of the partnership deed the appellant, c. v. krishnan, was to remain in calcutta to look after the interest of the firm at calcutta. he was a five annas sharer under the partnership deed and he was to receive a monthly salary which was to be fixed between the parties in addition to his interest as a five annas partner. according.....

Judgment:

S.K. Sen, J.

1. This is an appeal under Section 417 (3) of the Criminal Procedure Code, directed against the acquittal of the respondents Virji Kuverji and Bhulchand Padamshi in respect of a charge under Section 477A of the Indian Penal Code.

2. The case of the complainant appellant, C.V. Krishnan was briefly as follows:

The appellant became a partner of a firm, Virji Kuverji and Co. and a partnership deed was drawn up on 1-1-1954 by the three partners, namely, the appellant and the two respondents. It was also registered with the Sub-registrar of Assurances, Calcutta. According to the terms of the partnership deed the appellant, C. V. Krishnan, was to remain in Calcutta to look after the interest of the firm at Calcutta. He was a five annas sharer under the partnership deed and he was to receive a monthly salary which was to be fixed between the parties in addition to his interest as a five annas partner. According to the appellant his salary was fixed at Rs. 250/-and in April and August 1953 he received two cheques of Rs. 500/- each towards payment of salary, but received no further payment. After the expiry of the year 1954, he asked for accounts from the remaining partners: and after some delay, on 1-9-1955, he was supplied with a statement of accounts in which it was shown that in addition to the two sums of Rs. 500/- each admittedly received by him there were three other payments of Rs. 1,000/-each received by him. His share out of the partnership profits was shown as Rs. 7,877-13-6 ps.; out of the payments, excluding Rs. 1,000/- paid towards him as salary, the sum of Rs. 3,000/- supposed to have been paid was deducted from the share) found, and the balance of Rs. 4,877-13-6 ps. was shown as due to him. Subsequently, between 8-9-1955 and 17-11-1955 the complainant received several cheques amounting to Rs. 4,877-13-6 ps. in all and he accepted those cheques under protest.

3. As the respondents stuck to their case that they had made the three payments of Rs. 1,000/-each as shown in their statement of account, the appellant instituted the present case for cheating and falsification of accounts. The respondents were first discharged, but under the direction of the Additional Sessions Judge, Burdwan, there was a further enquiry and the respondents were summoned under Section 477A of the Indian Penal Code. The learned Magistrate who held the trial decided that on the facts before him it could not be said that a charge of falsification of accounts had been made out. Accordingly, he acquitted both the accused of thecharge under Section 477A of the Indian Penal Code. The complainant as appellant has filed this appeal under Section 417(3) of the Code of Criminal Procedure, contending that the order of acquittal was bad on the facts and law.

4. On the question of law, Section 477A of the Indian Penal Code applies in terms to falsification of accounts by a clerk, officer or servant employed under somebody else. According to the terms of the section, it does not appear that it is applicable to the case of falsification of accounts by a partner. The learned Magistrate considered himself bound by a Division Bench ruling of the Calcutta High Court, namely, Mohandas Mohan Biswas v. Shish Chandra Das : AIR1932Cal464 . It is true that it was held in that case that when one partner was in charge of the books, the mere fact that he was a partner and not a clerk or servant was no answer in the properly proved case to a charge of falsification of accounts. But though the decision was by a Division Bench, no reason at all was given for the same; there was no attempt to explain how the terms 'a clerk, or officer or servant or employed in the capacity of a clerk, officer or servant' could be interpreted to include a partner who was in charge of the books of the partnership firm. Mr. S.S. Mukherjee appearing on behalf of the appellant has frankly conceded that the binding force of the Division Bench ruling : AIR1932Cal464 , must be considered to have been considerably weakened if not altogether destroyed, by the Full Bench decision in Bhuban Mohan Das v. Surendra Mohan Das, : AIR1951Cal69 . It was held in that case that excepting in a case where by special agreement fiduciary obligations had been cast on him, a partner could not be charged under Section 406 of the Indian Penal Code in respect of a partnership property jointly belonging to him and the complainant partner. Thus, if a partner cannot, in the absence of a special contract, be charged with an offence of criminal breach of trust, it would be difficult to hold that he could be found guilty of falsification of accounts which can only be committed by a clerk, officer or a servant in respect of his employer's books of accounts. In another Division Bench case, Man Mohan Das v. Mohendra Bhowal, 49 Cri LJ 543: (AIR 1948 Cal 292), it was held that one partner could not be prosecuted under Section 424, Indian Penal Code for dishonestly or fraudulently concealing or removing the books of partnership, and that the proper remedy was in such a case to claim dissolution of partnership and accounts in a properly framed suit. If, therefore, a partner cannot be criminally prosecuted even if he fraudulently conceals or removes all the books of partnership, it is difficult to see how he could be prosecuted if he had made a false entry in one of the partnership books.

5. Apart from the rulings, I must clearly hold that in view of the wording of Section 477A of the Indian Penal Code, a partner clearly cannot be guilty of the offence under that section, and the offence can only be committed by somebody in the employ of another person as a clerk or officer or servant and the falsification can only be committed in respect of the books of accounts of the employer.

6. In the circumstances, the prosecution was not legally maintainable and it is, therefore, unnecessary to enter into the facts of the case.